Private Caucuses with Mediators

What happens in a mediation caucus? Answers from one mediator's caucuses in a study by Daniel Klerman and Lisa Klerman.

One paragraph from Inside the Caucus: An Empirical Analysis of Mediation from Within:

Parties in Lisa Klerman's mediations were always represented by lawyers. At least a day before the mediation, the lawyers ordinarily gave Ms Klerman “mediation briefs” summarizing the facts and legal issues. Lisa Klerman would typically begin the mediation by discussing the facts and underlying legal issues of the asserted claims in separate private caucuses (meetings) with each side. These communications were confidential in order to encourage the parties to be candid with the mediator. Ms Klerman would explore the strengths and weaknesses of the case with each side in order to set the stage for the parties to adjust their settlement expectations. In some cases, Ms Klerman would recommend an attorney caucus (a meeting between the mediator and the attorneys representing both sides, without their clients) to discuss disputed facts or novel legal arguments. It might be several hours before settlement numbers were discussed. Toward the end of the day, the parties may have stalled in their negotiations. If so, Ms Klerman would frequently make a “mediator's proposal” to settle the case. A mediator's proposal is a settlement proposal that comes from the mediator—not from either side—and is the number that the mediator believes both sides are most likely to accept. Although mediations are sometimes classified as facilitative or evaluative, Ms Klerman uses both approaches, as she thinks is most appropriate for each dispute. Because of her experience as an employment litigator, her evaluation of a case had substantial credibility with lawyers and their clients.

Resources for Teaching Negotiation and Mediation

Videos and roleplays from the American Bar Association and Suffolk University

Family Dispute Resolution

Innovations in Family Dispute Resolution conference at the University of Maryland School of Law November 13, 2015

Negotiating with the Dangerous (Terrorists, etc.)

Andrea Schneider (Marquette University Professor of Law) is the keynote speaker of this Negotiating with the Dangerous symposium at Fordham Law School.

Physiological Bases of Willpower as Important Explanations for Common Mediation Behavior

The Glucose Model of Mediation: Physiological Bases of Willpower as Important Explanations for Common Mediation Behavior is a new article I co-authored with psychology professor Roy Baumeister of Florida State University and two excellent practicing lawyers, Scott Simpson and Daniel Weber of Simpson, McMahan, Glick & Burford

The abstract:

Success in life requires the ability to resist urges and control behavior. This ability is commonly called “willpower,” the capacity to overcome impulses and engage in conscious acts of self-control. Social psychologists believe willpower is a finite resource dependent on physiological bases including glucose (from food and drink), sleep and other forms of rest, and the absence of stress. In short, people who are hungry, exhausted, or highly stressed tend to have less willpower than those who are well-fed, well-rested, and relatively stress-free. In addition, a person who exerts self-control (uses willpower) tends to reduce temporarily the amount of willpower remaining, so decision-making and other aspects of self-control are weakened during this depleted state. Restoring willpower (and thus restoring decision-making abilities) can often be achieved by physiological replenishment, such as: ingesting glucose, sleep (and other forms of rest) and breaks from stress.

The physiological bases of willpower combine with the importance of deadlines to offer a compelling explanation for why so many mediations follow a predictable pattern. Most significantly, the physiological bases of willpower go a long way to explaining why many mediations scheduled for a single day begin with stalwart opening positions and end with a signed settlement agreement late in the day. This Article provides a physiological explanation of typical mediation behavior and shows that an awareness of physiology reveals ethical issues with current mediation practice. Part I of this Article discusses the science, specifically the Strength and Glucose Models of Self-Control and their applications across studies of medicine, morality and negotiation. Part II outlines the course of a typical daylong mediation and shows the extent to which common mediation behavior is well-explained by the physiology of willpower when people are operating under deadlines. Part III examines the significance of the Glucose Model of Mediation by identifying ethical issues relating to willpower depletion in mediation.

Sept. 2016: Recent scholarship questions the willpower depletion (ego depletion) theory. Hat Tip to University of Tennessee Law Professor Becky Jacobs for pointing this out.

Collection of Alternative Dispute Resolution Course Syllabi Linked

University of Missouri Law Professor John Lande updated this excellent collection of syllabi for courses including Alternative Dispute Resolution, Arbitration, Comparative and International Dispute Resolution, Mediation and Negotiation.

Thanks also to John for his pleasant and insightful dinner conversation a few days ago. ;-)

Courts' Pressure to Mediate in England Similar to in the US?

An article in an Asian journal about mediation in England suggests issues familiar here in the United States. The abstract of Carrot and Stick Approach in English Mediation – There Must Be Another Way  by Hong-LinYu of the University of Stirling says under English law "Disputants are actively encouraged to take up mediation. Failing to do so, costs sanctions will be used as a 'stick' to penalize for having unreasonably refused to mediate in the eyes of the courts. This development has seen the voluntary nature of mediation, the need to educate the parties and the need for a legislative framework being sidelined."

Online Dispute Resolution

Online Dispute Resolution is the topic of a conference at JAMS New York City office, June 3-5, 2015, hosted by Pace University School of Law.

Good Negotiation Techniques from William Ury

Good Negotiation Techniques from William Ury

Videos for Learning Negotiation and Mediation

A nice collection of videos for learning negotiation and mediation is adrvideo.org

Securities Arbitration, Mediation and Negotiation

St. John’s School of Law and the Financial Industry Regulatory Authority (FINRA) host an annual "Securities Dispute Resolution Triathlon," a competition for law students. "The triathlon is the first and only competition to include negotiation, mediation, advocacy, and arbitration in a single event... Experienced neutrals from FINRA's mediator and arbitrator roster will evaluate and critique the student teams’ advocacy skills as they compete against other law school teams to demonstrate their proficiency in negotiation, mediation, and arbitration."

Grading Negotiation Exercises

The Harvard Program on Negotiation publishes thoughts on whether and how teachers should grade students' negotiation exercises and provides links to purchase several negotiation exercises.

A Mediated Resolution Is Like a Sale

Lawyer Douglas Chandler tells a nice story that relearns this lesson:

"Just like any business negotiation, it's best to close the complete deal while still at the table. The parties are still negotiating, so there is a major psychological advantage to maintaining that compromise process until all terms are settled. If you wait, you're potentially opening the door for emotion and memory to alter perception and create doubt on either side of the table, which may end up causing additional delays, negotiation, or court intervention."

Videos of Mediation and other Alternative Dispute Resolution

The American Bar Ass'n/Suffolk University Law School Video Center shows how mediation and other ADR techniques can be used to resolve a wide range of disputes. Teachers of ADR may download videos and roleplays at no charge for use in their classes.

Common Misunderstanding About Negotiation

"The current framework" of negotiation, as U. Missouri Law Professor John Lande's post says, "relies primarily on two models – positional and interest-based negotiation. ...People often fall into the trap of "equating positional negotiation as being tough and interest-based negotiation as being nice," according to John Lande's post at Indisputably.

Mediation in Hong Kong

Mediation in Hong Kong SAR by Shahla F. Ali &  A. K. C. Koo, both of the University of Hong Kong

According to this article, the Hong Kong Mediation Ordinance came into force on 1 January 2013. "It aims to provide a regulatory framework for promoting the use of mediation as a dispute resolution process and protecting the confidential nature of mediation communications... it prohibits disclosure or admissibility of mediation communications unless in exceptional circumstances or with leave of the court."

"At present, Hong Kong has not adopted legislation based on the Model Law on International Commercial Conciliation of the United Nations Commission on International Trade Law (the ‘Model Law’). Its adoption seems unlikely"

Alternative Dispute Resolution (Negotiation, Mediation, and Arbitration) on Twitter

This very helpful list of Twitter feeds compiled by

J. Haskell Murray, J.D.

Assistant Professor of Management and Business Law

Belmont University

1900 Belmont Boulevard

Jack C. Massey Business Center, Office 438

Nashville, Tennessee 37212

Phone: 615-460-6395

Email: haskell.murray@belmont.edu

Profile │ Research │ Twitter

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